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42 USC 3789d
TITLE 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 46--JUSTICE SYSTEM IMPROVEMENT
SUBCHAPTER VIII--ADMINISTRATIVE PROVISIONS
Sec. 3789d. Prohibition of Federal control over State and local
criminal justice agencies; prohibition of discrimination
(a) General rule
Nothing in this chapter or any other Act shall be construed to
authorize any department, agency, officer, or employee of the United
States to exercise any direction, supervision, or control over any
police force or any other criminal justice agency of any State or any
political subdivision thereof.
(b) Racial imbalance requirement restriction
Notwithstanding any other provision of law, nothing contained in
this chapter shall be construed to authorize the National Institute of
Justice, the Bureau of Justice Statistics, or the Law Enforcement
Assistance Administration--
(1) to require, or condition the availability or amount of a
grant upon the adoption by an applicant or grantee under this
chapter of a percentage ratio, quota system, or other program to
achieve racial balance in any criminal justice agency; or
(2) to deny or discontinue a grant because of the refusal of an
applicant or grantee under this chapter to adopt such a ratio,
system, or other program.
(c) Discrimination prohibited; notice of non-compliance; suspension and
restoration of payments; hearing; civil action by Attorney
General; private action, attorney fees, intervention by Attorney
General
(1) No person in any State shall on the ground of race, color,
religion, national origin, or sex be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under or
denied employment in connection with any programs or activity funded in
whole or in part with funds made available under this chapter.
(2)(A) Whenever there has been--
(i) receipt of notice of a finding, after notice and opportunity
for a hearing, by a Federal court (other than in an action brought
by the Attorney General) or State court, or by a Federal or State
administrative agency, to the effect that there has been a pattern
or practice of discrimination in violation of paragraph (1); or
(ii) a determination after an investigation by the Office of
Justice Programs (prior to a hearing under subparagraph (F) but
including an opportunity for the State government or unit of local
government to make a documentary submission regarding the allegation
of discrimination with respect to such program or activity, with
funds made available under this chapter) that a State government or
unit of local government is not in compliance with paragraph (1);
the Office of Justice Programs shall, within ten days after such
occurrence, notify the chief executive of the affected State, or the
State in which the affected unit of local government is located, and the
chief executive of such unit of local government, that such program or
activity has been so found or determined not to be in compliance with
paragraph (1), and shall request each chief executive, notified under
this subparagraph with respect to such violation, to secure compliance.
For purposes of clause (i) a finding by a Federal or State
administrative agency shall be deemed rendered after notice and
opportunity for a hearing if it is rendered pursuant to procedures
consistent with the provisions of subchapter II of chapter 5 of title 5.
(B) In the event the chief executive secures compliance after notice
pursuant to subparagraph (A), the terms and conditions with which the
affected State government or unit of local government agrees to comply
shall be set forth in writing and signed by the chief executive of the
State, by the chief executive of such unit (in the event of a violation
by a unit of local government), and by the Office of Justice Programs.
On or prior to the effective date of the agreement, the Office of
Justice Programs shall send a copy of the agreement to each complainant,
if any, with respect to such violation. The chief executive of the
State, or the chief executive of the unit (in the event of a violation
by a unit of local government) shall file semiannual reports with the
Office of Justice Programs detailing the steps taken to comply with the
agreement. These reports shall cease to be filed upon the determination
of the Office of Justice Programs that compliance has been secured, or
upon the determination by a Federal or State court that such State
government or local governmental unit is in compliance with this
section. Within fifteen days of receipt of such reports, the Office of
Justice Programs shall send a copy thereof to each such complainant.
(C) If, at the conclusion of ninety days after notification under
subparagraph (A)--
(i) compliance has not been secured by the chief executive of
that State or the chief executive of that unit of local government;
and
(ii) an administrative law judge has not made a determination
under subparagraph (F) that it is likely the State government or
unit of local government will prevail on the merits; the Office of
Justice Programs shall notify the Attorney General that compliance
has not been secured and caused to have suspended further payment of
any funds under this chapter to that program or activity. Such
suspension shall be limited to the specific program or activity
cited by the Office of Justice Programs in the notice under
subparagraph (A). Such suspension shall be effective for a period of
not more than one hundred and twenty days, or, if there is a hearing
under subparagraph (G), not more than thirty days after the
conclusion of such hearing, unless there has been an express finding
by the Office of Justice Programs, after notice and opportunity for
such a hearing, that the recipient is not in compliance with
paragraph (1).
(D) Payment of the suspended funds shall resume only if--
(i) such State government or unit of local government enters
into a compliance agreement approved by the Office of Justice
Programs and the Attorney General in accordance with subparagraph
(B);
(ii) such State government or unit of local government complies
fully with the final order or judgment of a Federal or State court,
or by a Federal or State administrative agency if that order or
judgment covers all the matters raised by the Office of Justice
Programs in the notice pursuant to subparagraph (A), or is found to
be in compliance with paragraph (1) by such court; or
(iii) after a hearing the Office of Justice Programs pursuant to
subparagraph (F) finds that noncompliance has not been demonstrated.
(E) Whenever the Attorney General files a civil action alleging a
pattern or practice of discriminatory conduct on the basis of race,
color, religion, national origin, or sex in any program or activity of a
State government or unit of local government which State government or
unit of local government receives funds made available under this
chapter, and the conduct allegedly violates the provisions of this
section and neither party within forty-five days after such filing has
been granted such preliminary relief with regard to the suspension or
payment of funds as may be otherwise available by law, the Office of
Justice Programs shall cause to have suspended further payment of any
funds under this chapter to that specific program or activity alleged by
the Attorney General to be in violation of the provisions of this
subsection until such time as the court orders resumption of payment.
(F) Prior to the suspension of funds under subparagraph (C), but
within the ninety-day period after notification under subparagraph (C),
the State government or unit of local government may request an
expedited preliminary hearing on the record in accordance with section
554 of title 5, in order to determine whether it is likely that the
State government or unit of local government would, at a full hearing
under subparagraph (G), prevail on the merits on the issue of the
alleged noncompliance. A finding under this subparagraph by the
administrative law judge in favor of the State government or unit of
local government shall defer the suspension of funds under subparagraph
(C) pending a finding of noncompliance at the conclusion of the hearing
on the merits under subparagraph (G).
(G)(i) At any time after notification under subparagraph (A), but
before the conclusion of the one-hundred-and-twenty-day period referred
to in subparagraph (C), a State government or unit of local government
may request a hearing on the record in accordance with section 554 of
title 5, which the Office of Justice Programs shall initiate within
sixty days of such request.
(ii) Within thirty days after the conclusion of the hearing, or, in
the absence of a hearing, at the conclusion of the one-hundred-and-
twenty-day period referred to in subparagraph (C), the Office of Justice
Programs shall make a finding of compliance or noncompliance. If the
Office of Justice Programs makes a finding of noncompliance, the Office
of Justice Programs shall notify the Attorney General in order that the
Attorney General may institute a civil action under paragraph (3), cause
to have terminated the payment of funds under this chapter, and, if
appropriate, seek repayment of such funds.
(iii) If the Office of Justice Programs makes a finding of
compliance, payment of the suspended funds shall resume as provided in
subparagraph (D).
(H) Any State government or unit of local government aggrieved by a
final determination of the Office of Justice Programs under subparagraph
(G) may appeal such determination as provided in section 3785 of this
title.
(3) Whenever the Attorney General has reason to believe that a State
government or unit of local government has engaged in or is engaging in
a pattern or practice in violation of the provisions of this section,
the Attorney General may bring a civil action in an appropriate United
States district court. Such court may grant as relief any temporary
restraining order, preliminary or permanent injunction, or other order,
as necessary or appropriate to insure the full enjoyment of the rights
described in this section, including the suspension, termination, or
repayment of such funds made available under this chapter as the court
may deem appropriate, or placing any further such funds in escrow
pending the outcome of the litigation.
(4)(A) Whenever a State government or unit of local government, or
any officer or employee thereof acting in an official capacity, has
engaged or is engaging in any act or practice prohibited by this
subsection, a civil action may be instituted after exhaustion of
administrative remedies by the person aggrieved in an appropriate United
States district court or in a State court of general jurisdiction.
Administrative remedies shall be deemed to be exhausted upon the
expiration of sixty days after the date the administrative complaint was
filed with the Office of Justice Programs or any other administrative
enforcement agency, unless within such period there has been a
determination by the Office of Justice Programs or the agency on the
merits of the complaint, in which case such remedies shall be deemed
exhausted at the time the determination becomes final.
(B) In any civil action brought by a private person to enforce
compliance with any provision of this subsection, the court may grant to
a prevailing plaintiff reasonable attorney fees, unless the court
determines that the lawsuit is frivolous, vexatious, brought for
harassment purposes, or brought principally for the purpose of gaining
attorney fees.
(C) In any action instituted under this section to enforce
compliance with paragraph (1), the Attorney General, or a specially
designated assistant for or in the name of the United States, may
intervene upon timely application if he certifies that the action is of
general public importance. In such action the United States shall be
entitled to the same relief as if it had instituted the action.
(Pub. L. 90-351, title I, Sec. 809, formerly Sec. 815, as added Pub. L.
96-157, Sec. 2, Dec. 27, 1979, 93 Stat. 1206; renumbered Sec. 809 and
amended Pub. L. 98-473, title II, Sec. 609B(f), (h)), Oct. 12, 1984, 98
Stat. 2093, 2095; Pub. L. 103-322, title XXXIII, Sec. 330001(h)(11),
Sept. 13, 1994, 108 Stat. 2139.)
Prior Provisions
Provisions similar to this section were contained in former section
3766 of this title prior to the general amendment of this chapter by
Pub. L. 96-157.
A prior section 809 of Pub. L. 90-351, title I, as added Pub. L. 96-
157, Sec. 2, Dec. 27, 1979, 93 Stat. 1204, amended section 5315 of Title
5, Government Organization and Employees, prior to repeal by section
609B(e) of Pub. L. 98-473.
Amendments
1994--Subsec. (c)(2)(H). Pub. L. 103-322 made technical amendment to
reference to section 3785 of this title to correct reference to
corresponding section of original act.
1984--Subsec. (a). Pub. L. 98-473, Sec. 609B(h)(2), struck out
``contained'' after ``Nothing''.
Subsec. (c). Pub. L. 98-473, Sec. 609B(h)(3), substituted ``Office
of Justice Programs'' for ``Office of Justice Assistance, Research, and
Statistics'' wherever appearing.
Effective Date of 1984 Amendment
Amendment by section 609B(h) of Pub. L. 98-473 effective Oct. 12,
1984, see section 609AA(a) of Pub. L. 98-473, set out as an Effective
Date note under section 3711 of this title.
Section Referred to in Other Sections
This section is referred to in sections 3785, 5672, 10504 of this
title.
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